United States v. Kevin Carson , 924 F.3d 467 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3589
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kevin P. Carson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Western Division
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Submitted: November 12, 2018
Filed: May 10, 2019
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Kevin Carson pled guilty to the receipt, possession, and attempted distribution
of child pornography. The district court1 sentenced Carson to 20 years of
imprisonment followed by a life term of supervised release. Carson appeals, arguing
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
the district court failed to explain the basis for his life term of supervised release and
erred in imposing certain special conditions on his supervision. We affirm.
I.
In 2013, an FBI officer downloaded child pornography from two IP addresses
assigned to a residence associated with Carson. FBI officers executed a search
warrant at the residence, where Carson admitted to using a file sharing program to
download and share child pornography. He also admitted to using his cellphone to
take pictures of himself and a sixteen-year-old girl having sex. The officers seized
Carson’s electronics (a laptop, cell phone, and hard drive), on which they discovered
593 still images and 99 videos mostly depicting child bondage and bestiality,
including a horrifying image of a female infant being raped by an adult male. Carson
also later admitted to exchanging sexually-explicit photos with five girls between the
ages of fourteen and seventeen and emailing child pornography to a sixth girl.
Carson pled guilty to one count of receiving child pornography and two counts
of attempting to distribute child pornography in violation of 18 U.S.C. § 2252(a)(2),
and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4).
The district court imposed the statutory maximum prison term on each count but
allowed them to run concurrently, resulting in a total prison term of 20 years — 10
years below Carson’s advisory range under the U.S. Sentencing Guidelines Manual
(the “Guidelines”). The district court also imposed a life term of supervised release
with 13 standard and 17 special conditions. Carson appeals the life term of
supervised release and three of the special conditions.
II.
A.
Carson argues the district court committed procedural error by imposing a life
term of supervised release without considering the relevant sentencing factors under
18 U.S.C. § 3553(a) and without explaining the basis for so long a term. Carson
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notes that while the district court considered several § 3553(a) factors in imposing his
term of imprisonment, the district court failed to provide any explanation for
imposing a lifetime term of supervised release.
Carson did not raise this objection before the district court, so our review on
appeal is for plain error. United States v. Moore, 565 F.3d 435, 437 (8th Cir. 2009).
“To qualify for relief under the plain error standard, [Carson] must show that the
district court committed an error that is plain, that affects his substantial rights, and
that seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Mayo, 642 F.3d 628, 631 (8th Cir. 2011).
Carson’s argument overlooks the fact “[t]he term of supervised release is part
of a defendant’s sentence.” United States v. James, 792 F.3d 962, 967 (8th Cir.
2015); see also 18 U.S.C. § 3583(a) (stating a court may include a requirement of
supervised release “as part of the sentence”). Indeed, federal law provides that in
determining the length of supervised release, a district court must consider many of
the same § 3553(a) factors underlying a defendant’s term of imprisonment, including
the nature and circumstances of the offense, the history and characteristics of the
defendant, the need to protect the public, and the need to provide the defendant with
effective correctional treatment. 18 U.S.C. §§ 3553(a), 3583(c). We therefore agree
with other circuits that have said “a single consideration of the sentencing factors”
can “embrace[] both the incarceration sentence and the supervised release term,”
United States v. Presto, 498 F.3d 415, 419 (6th Cir. 2007), and “[o]ne overarching
explanation often will provide an adequate explanation for the duration of supervised
release,” United States v. Moose, 893 F.3d 951, 960 (7th Cir. 2018).
Here, the district court’s consideration of the § 3553(a) factors “applie[d]
equally well” to both Carson’s terms of imprisonment and supervised release. Id.
The district court referenced the nature and circumstances of Carson’s offense, noting
his offense conduct included the “somewhat unique” aggravating factors of
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distributing child pornography to a minor and engaging in a pattern of activity
involving the sexual exploitation of minors. The district court discussed Carson’s
history and characteristics, granting a downward variance on the prison term because
of Carson’s lack of criminal history, the fact he pled guilty, and the fact he received
a three-level reduction for acceptance of responsibility. The district court’s sentence
mirrored the recommendations it reviewed in the government’s sentencing
memorandum,2 which analyzed five of the § 3553(a) factors. See United States v.
Gray, 533 F.3d 942, 944 (8th Cir. 2008) (“[I]n determining whether the district court
considered the relevant factors in a particular case, ‘the context for the appellate
court’s review is the entire sentencing record, not merely the district court’s
statements at the hearing.’” (quoting United States v. Perkins, 526 F.3d 1107, 1111
(8th Cir. 2008))).
We conclude any error in this explanation was not plain — that is, “clear or
obvious under current law.” United States v. Poitra, 648 F.3d 884, 887 (8th Cir.
2011). The requisite explanation “may be relatively brief if the district court rests its
decision on the Sentencing Commission’s reasoning and ‘decides simply to apply the
Guidelines to a particular case.’” United States v. Roberson, 517 F.3d 990, 994 (8th
Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). Here, both
federal law and the Guidelines authorize up to a life term of supervised release for
Carson’s offense conduct. See 18 U.S.C. § 3583(k); USSG § 5D1.2(b)(2). The
Guidelines also include a policy statement providing that “[i]f the instant offense of
conviction is a sex offense . . . the statutory maximum term of supervised release is
recommended.” USSG § 5D1.2(b) (Policy Statement) (emphasis added). Carson’s
life term of supervised release was a straightforward application of this policy.
In addition, it is not clear or obvious the district court failed to “set forth
enough to satisfy [this] court that [it] . . . considered the parties’ arguments and ha[d]
2
Carson did not submit his own sentencing memorandum.
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a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita, 551
U.S. at 356. At the sentencing hearing, Carson disputed the government’s
recommended 20 years of imprisonment but chose not to dispute the recommended
life term of supervised release. The government made these recommendations in its
sentencing memorandum, relying heavily on Carson’s deviant sexual interest in child
bondage and bestiality and his demonstrated willingness to sexually exploit minors
— along with a concomitant likelihood of recidivism. The district court told the
parties it had reviewed the government’s memorandum, and Carson’s counsel
acknowledged that Carson might be on supervised release “perhaps for the rest of his
life and he accepts that.” In light of the entire sentencing record, we cannot say the
district court’s brief explanation for Carson’s sentence (including his term of
supervised release) was plainly erroneous.3
B.
Carson also challenges three special conditions of his supervised release:
Special Condition 6, to the extent it prohibits “possess[ing]” or “hav[ing] under his
control any matter that is pornographic/erotic”; Special Condition 14, which prohibits
“possess[ing] or us[ing] any computer or electronic device with access to any ‘on-line
computer service’ without the prior approval of the Probation Office”; and Special
Condition 16, which prohibits “maintain[ing] or creat[ing] a user account on any
social networking site . . . that allows access to persons under the age of 18, or allows
for the exchange of sexually-explicit material, chat conversations, or instant
messaging.” Special Condition 16 also prohibits “view[ing] and/or access[ing] any
web profile users under the age of 18.”
3
We disagree with Carson that his case is similar to the Sixth Circuit’s decision
in United States v. Inman because that court found plain error where the district court
failed to explain why it imposed a life term of supervised release rather than the 10-
year term recommended by the parties. 666 F.3d 1001, 1004 (6th Cir. 2012). Here
Carson’s life term of supervised release was consistent with his own expectations at
sentencing and with the government’s recommendation.
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“Ordinarily, ‘[t]erms and conditions of supervised release are reviewed for
abuse of discretion.’” United States v. Demers, 634 F.3d 982, 983 (8th Cir. 2011)
(alteration in original) (quoting United States v. Bender, 566 F.3d 748, 751 (8th Cir.
2009)). However, since Carson did not object at sentencing to any of the special
conditions he now challenges on appeal, we review his claims for plain error. Id.
1.
Carson first argues that all three challenged conditions involve a greater
deprivation of liberty than reasonably necessary and that Special Condition 6 is also
unconstitutionally overbroad and vague. For example, he argues Special Condition
6 (banning possession of “any matter that is pornographic/erotic”) reaches depictions
of non-obscene nudity and material that merely alludes to sexual activity, in conflict
with previous decisions of this court. See, e.g., United States v. Kelly, 625 F.3d 516,
521–22 (8th Cir. 2010). He argues Special Condition 14 (effectively prohibiting
internet access without prior approval from the probation office) cannot be applied
for life to a mere possessor of child pornography. Finally, he argues Special
Condition 16 (restricting social media access) conflicts with the Supreme Court’s
recent decision in Packingham v. North Carolina holding that a North Carolina
statute making it a felony for registered sex offenders to access social media web sites
violated the First Amendment. 137 S. Ct. 1730 (2017).
Our precedent forecloses Carson’s challenge to Special Condition 6. We
recently rejected the same overbreadth and vagueness challenges to a condition
prohibiting a defendant from, among other things, “possess[ing]” or “us[ing]” “any
form of erotica or pornographic materials.” See United States v. Sebert, 899 F.3d
639, 641 (8th Cir. 2018). We have also previously deemed a condition involving a
ban on viewing erotica as distinct from invalid bans on materials containing “nudity”
(which could reach protected forms of art). See United States v. Mefford, 711 F.3d
923, 926–28 (8th Cir. 2013). We thus cannot say Special Condition 6 involves a
greater deprivation of liberty than reasonably necessary. See id.
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Our precedent also forecloses Carson’s challenge to Special Condition 14. We
have “identified two relevant factors for determining the propriety of a restriction on
computer and internet use”: (1) “whether there was evidence demonstrating ‘that the
defendant did more than merely possess child pornography,’” and (2) “whether the
restriction amounts to a total ban on internet and computer use.” United States v.
Goettsch, 812 F.3d 1169, 1171 (8th Cir. 2016) (quoting United States v. Ristine, 335
F.3d 692, 696 (8th Cir. 2003)). Here, Carson admitted to exchanging sexually
explicit photos with five girls younger than eighteen and emailing child pornography
to a sixth girl. He also remains free to use internet-capable computers and electronics
with permission from the probation office. We have consistently upheld this type of
restriction under similar circumstances as part of a lifetime term of supervised release,
see United States v. Morais, 670 F.3d 889, 891, 895–97 (8th Cir. 2012); United States
v. Munjak, 669 F.3d 906, 907–08 (8th Cir. 2012); Demers, 634 F.3d at 983–85, and
we see no basis for departing from these precedents here.
We next turn to Carson’s argument that Special Condition 16 (the social media
restriction) “suffers the same flaws as the North Carolina statute held to be
unconstitutional in Packingham.” The Supreme Court in Packingham considered the
constitutionality of a statute prohibiting registered sex offenders from “access[ing]
a commercial social networking Web site where the sex offender knows that the site
permits minor children to become members” or from “creat[ing] or maintain[ing]
personal Web pages” on such sites. Packingham, 137 S. Ct. at 1733 (quoting N.C.
Gen. Stat. Ann. § 14-202.5(a), (e)). The Supreme Court held the statute burdened
substantially more speech than necessary to further the government’s interests in
protecting minors from sexual abuse. Id. at 1737–38. The Court reasoned that “to
foreclose access to social media altogether is to prevent the user from engaging in the
legitimate exercise of First Amendment rights,” given the importance of social media
for accessing information and communicating with others. Id. at 1737. Carson
argues his court-imposed inability to maintain or create a user account on any social
media site falls squarely under the holding of Packingham.
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We disagree. Several of our sister circuits have rejected a similar argument in
challenges to supervised release conditions forbidding access to the internet — and
effectively to social media sites — without prior approval or monitoring by a court
or probation officer. See United States v. Antczak, 753 F. App’x. 705, 715 (11th Cir.
2018) (unpublished); United States v. Halverson, 897 F.3d 645, 657–58 (5th Cir.
2018); United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017); United
States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017). These courts have noted
Packingham invalidated only a post-custodial restriction and expressed concern that
the statute applied even to “persons who have already served their sentence.”
Halverson, 897 F.3d at 658 (quoting Packingham, 137 S. Ct. at 1737). Because
supervised release is part of a defendant’s sentence, Packingham does not render a
district court’s restriction on access to the internet during a term of supervised release
plain error. See id.; Rock, 863 F.3d at 831. We find this reasoning applies with equal
force here. Thus, even assuming the district court’s prohibition on creating or
maintaining a social media profile implicates the same First Amendment interests as
a restriction on accessing social media altogether, the district court did not commit
plain error by imposing Special Condition 16.
2.
Carson next argues the district court failed to support any of the challenged
conditions with individualized findings. We have recognized that a “district court
must make an individualized inquiry into the facts and circumstances underlying a
case and make sufficient findings on the record so as to ensure that the special
condition satisfies the statutory requirements.” Poitra, 648 F.3d at 889 (quoting
United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011)). The relevant statutory
requirements are found under 18 U.S.C. § 3583(d), which provides that each
condition “be reasonably related to the nature and circumstances of the offense and
the history and characteristics of the defendant, deterrence of criminal conduct,
protection of the public, and treatment of the defendant’s correctional needs,” Mayo,
642 F.3d at 631 (citing 18 U.S.C. § 3583(d)(1)); involve no greater deprivation of
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liberty than is reasonably necessary to deter criminal conduct, protect the public, and
treat the defendant’s criminal needs, id. (citing § 3583(d)(2)); and be “consistent with
pertinent Sentencing Commission policy statements,” id. (citing § 3583(d)(3)).
We agree with Carson that the district court plainly erred by failing to make
any effort to support the challenged conditions (or any other special condition) with
individualized findings. See Poitra, 648 F.3d at 889. However, Carson must still
show the error affected his substantial rights. Mayo, 642 F.3d at 631. Where the
basis for an imposed condition is “sufficiently evident” and “can be discerned” from
the record, “reversal is not required by a lack of individualized findings.” United
States v. Thompson, 653 F.3d 688, 694 (8th Cir. 2011).
We find the reasons for the challenged conditions sufficiently evident from this
record. Carson’s seized electronics contained hundreds of downloaded images and
videos mostly depicting child bondage and bestiality. These included depictions of
an infant girl being raped by an adult male as well as prepubescent girls engaging in
sex acts with adult males. Carson admitted to downloading and sharing child
pornography over the internet. We have previously found similar facts rendered the
basis for similar special conditions sufficiently evident. See, e.g., Thompson, 653
F.3d at 693–94; Munjak, 669 F.3d at 908. Further, Carson admitted to exchanging
sexually-explicit photographs with several girls younger than eighteen — at least one
with whom he had a sexual relationship and another of whom he admitted meeting
on a social media site. Accordingly, Carson’s restrictions were “reasonably necessary
to further the purposes of sentencing, including adequate deterrence and protection
of the public from future crimes by the defendant.” Munjak, 669 F.3d at 908. The
district court’s failure to make individualized findings did not affect Carson’s
substantial rights.
III.
For the foregoing reasons, we affirm Carson’s sentence.
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GRASZ, Circuit Judge, concurring.
I concur in the court’s judgment and join its opinion in full. As to Special
Condition 6 (prohibiting Carson from possessing or controlling erotica), I concur only
because I conclude it is required by precedent. I continue to disagree with that
precedent for the reasons discussed in my concurring opinion in Sebert, 899 F.3d at
641–42 (Grasz, J., concurring).
KELLY, Circuit Judge, dissenting.
One of our primary roles in sentencing appeals is to correct procedural errors.
And “meaningful appellate review” is possible only if the district court “adequately
explain[s] the chosen sentence.” Gall v. United States, 552 U.S. 38, 50 (2007). Here,
the district court did not provide any explanation for why it chose to impose a lifetime
term of supervised release or any of its seventeen special conditions. Rather than
speculate from the district court’s silence, I would vacate this portion of Carson’s
sentence and remand to allow the district court to provide that explanation.
A few particular aspects of the court’s opinion give me pause. The first is its
conclusion that the district court’s evaluation of the § 3553(a) factors in determining
the length of Carson’s imprisonment also satisfied its obligations under § 3583(c).
Section 3583(c) directs district courts to consider some, but not all, of the § 3553(a)
factors when “determining the length of the term and the conditions of supervised
release.” Under certain circumstances, it may be appropriate for a district court to
simply refer back to its previous analysis when explaining its decision to impose a
particular supervised release term. But here, the district court’s explanation for the
incarceration portion of its sentence does not explain its chosen term of supervised
release. For the prison term, the court varied downward from the bottom of the
Guidelines range by ten years, largely based on Carson’s mitigating factors, including
that he was a first-time offender and had accepted responsibility for his offenses. The
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court’s explanation for its substantial downward variance does not readily explain its
decision to impose the maximum possible term of supervised release. This is simply
not a case where “[o]ne overarching explanation” adequately explains both aspects
of the sentence. Moose, 893 F.3d at 960.4
The court also excuses the district court’s plain error in failing to make any of
the individualized findings necessary to justify its special conditions of supervised
release. “When crafting a special condition of supervised release, the district court
must make an individualized inquiry into the facts and circumstances underlying a
case and make sufficient findings on the record so as to ensure that the special
condition satisfies the statutory requirements.” Wiedower, 634 F.3d at 493 (cleaned
up). Such findings are necessary to ensure that the conditions imposed are
“reasonably related to § 3553(a) factors, involve no greater deprivation of liberty than
is reasonably necessary, and are consistent with any pertinent policy statements
issued by the United States Sentencing Commission.” Goettsch, 812 F.3d at 1171
(quoting United States v. Koch, 625 F.3d 470, 481 (8th Cir. 2010)). The court
reasons that the need for each of the three challenged special conditions is sufficiently
evident from the record. I disagree.
Special Condition 14, for example, broadly prohibits Carson from possessing
or using “any computer or electronic device with access to any ‘on-line computer
service’ without the prior approval of the Probation Office.”5 While we have
4
This is also not a case where the district court merely provided a “relatively
brief” explanation for its decision and “decide[d] simply to apply the Guidelines.”
Roberson, 517 F.3d at 994 (cleaned up). The district court provided no explanation
for its supervised release term and rejected the Guidelines’ recommended term of
imprisonment.
5
Special Condition 15, which Carson does not challenge, separately requires
that Carson consent to having hardware or software installed on his computer to
permit monitoring by the Probation Office.
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previously upheld internet restrictions for offenders who distributed child
pornography, we have been careful to tailor the restrictions to the offender’s
particular circumstances. See, e.g., United States v. Stults, 575 F.3d 834, 856 (8th
Cir. 2009). Read literally, Carson could violate Special Condition 14 by accessing
any number of internet-connected household devices, from thermostats to doorbells.
I trust that the U.S. Probation Office will judiciously exercise its discretion in
enforcing this prohibition. But the sheer breadth of discretion afforded to the
Probation Office only underscores the need for the district court to conduct a careful,
individualized inquiry before imposing a condition that some courts have described
as “lifetime cybernetic banishment.” United States v. Voelker, 489 F.3d 139, 148 (3d
Cir. 2007).
Without any analysis by the district court, it is also hard to conclude that
Special Condition 16 is justified. The court distinguishes Packingham, which
invalidated a similar restriction on access to social media on First Amendment
grounds, by limiting that case to post-custodial restrictions. But even if Special
Condition 16 is not unconstitutional, it does not necessarily follow that the condition
is justified in Carson’s case. The condition specifically prohibits Carson from
creating a user account on any “social networking site” that minors may access. The
term “social networking site” is not defined, and in Packingham the Court
acknowledged that the term “commercial social networking site” could potentially
apply “not only to commonplace social media websites but also to websites as varied
as Amazon.com, Washingtonpost.com, and Webmd.com.” 137 S. Ct. at 1736. Again,
I have confidence that the Probation Office would not take such an unreasonably
broad view of Special Condition 16, but the condition’s plain language offers little
to circumscribe its discretion.
I do not minimize the seriousness of Carson’s crimes. For those he will serve
a twenty-year prison term followed by a lengthy term of supervised release. I also
recognize the need to monitor Carson’s conduct upon release. But Carson was thirty-
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three at the time of his arrest, and his lifetime term of supervised release could very
well last decades. We can only imagine the universe of internet-reliant electronic
devices that will pervade everyday life by then. The length and conditions of
Carson’s supervised release may well be justified, but such punishment deserves, at
minimum, some reasoned explanation from the sentencing court. Accordingly, I
respectfully dissent.
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